Opinion
CASE NO. 10CV2559 DMS (NLS).
December 22, 2010
Plaintiff, a non-prisoner proceeding pro se, has submitted a Complaint and Motion and Declaration Under Penalty of Perjury in Support of Motion to Proceed In Forma Pauperis ("IFP").
I. Motion to Proceed IFP
II. Sua Sponte Screening per 28 U.S.C. § 1915(e)(2)
See 28 U.S.C. § 191428 U.S.C. § 1915See Rodriguez v. Cook169 F.3d 11761177See 28 U.S.C. § 1915 28 U.S.C. § 1915sua sponte28 U.S.C. § 1915Calhoun v. Stahl 254 F.3d 845845 28 U.S.C. § 1915Lopez v. Smith 203 F.3d 11221126-27 en banc4 Lopez203 F.3d at 1127see also Barren v. Harrington152 F.3d 1193119412
As currently pleaded, Plaintiff's Complaint is subject to sua sponte dismissal under 28 U.S.C. § 1915(e)(2)(B)(ii) because it fails to state a claim upon which relief may be granted. Plaintiff's Complaint states a claim for failure to comply with the terms of the Home Affordable Modification Program ("HAMP"). However, HAMP generally involves an agreement between a participating loan servicer and the U.S. Department of Treasury and a borrower does not have a private right to enforce the HAMP contract. Benito v. Indymac Mortg. Serv., No. 09cv1218 (PMP) (PAL), 2010 WL 2130648, at * 7 (D. Nev. May 21, 2010); Escobedo v. Countrywide Home Loans, Inc., No. 09cv1557 (BTM) (BLM), 2009 WL 4981618, at *1-2 (S.D. Cal. Dec. 15, 2009). Plaintiff further states in her Complaint that she and her son were "fraudulently put on the streets." To the extent Plaintiff intends to state a claim for fraud, she has failed to sufficiently plead facts in support of such claim. See Fed.R.Civ.P. 9(b) (a party alleging fraud must "state with particularity the circumstances constituting fraud or mistake"). Finally, Plaintiff also lists 42 U.S.C. § 3631, 18 U.S.C. § 245, and 28 U.S.C. § 1332 on her civil cover sheet. However, she fails to allege any facts in support of claims under any of these statutes. To the extent Plaintiff intends to state claims pursuant to any of these statutes, such claims are dismissed without prejudice for failure to state a claim upon which relief can be granted. Accordingly, the Court hereby finds that Plaintiffs' Complaint must be dismissed for failing to state a claim upon which relief can be granted.
III. Conclusion and Order
For these reasons, IT IS HEREBY ORDERED that Plaintiff's Motion to Proceed IFP is GRANTED. The Complaint is DISMISSED without prejudice for failure to state a claim.
IT IS SO ORDERED.
DATED: December 21, 2010